Page No.# 1/8 GAHC010051412025 2025:GAU-AS:4915 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Bail Appln./716/2025 MOKDAM ALI ALIAS DR MOKDOM ALI AND ANR S/O LATE SAHED ALI, RESIDENT OF VLLLAGE MORABAS, PS AND DIST BARPETA, ASSAM 2: MAHIBUL HOQUE @ MOHIBUL HOQUE @ MONI S/O LATE ABDUS SAMAD AHMED RESIDENT OF VILLAGE AZAD NAGAR PS AND DIST BARPETA ASSA VERSUS THE STATE OF ASSAM REP BY PP ASSAM Advocate for the Petitioner : MD A RAHMAN, MR A W AMAN,SAMIM RAHMAN,MR. SURAJIT DAS,A S CHOUDHURY,MR SARFRAZ NAWAZ Advocate for the Respondent : PP, ASSAM, BEFORE HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND ORDER 24.04.2025 1. Heard Mr. S. Das learned counsel for the petitioners namely, (i) Mokdam Ali @Dr. Mokdom Ali, and (ii) Mahibul Hoque @Mohibul Hoque @Moni. Page No.# 2/8 2. The petitioners have filed this application under Section 483 of the BNSS, 2023 with prayer for bail as the petitioners, (i) Mokdam Ali @Dr. Mokdom Ali, and (ii) Mahibul Hoque @Mohibul Hoque @Moni are behind bars since 22.03.2022 and 30.03.2022 respectively in connection with Barpeta P.S. Case No. 338/2022 corresponding to Sessions Case No. 209/2022 under Sections 302/24 of the IPC. 3. Heard Mr. R. J. Baruah, learned Additional Public Prosecutor, Assam for the respondent State. 4. The petitioner No. 1 is a registered medical practitioner whereas the petitioner No. 2 is a daily wage earner and they are facing trial in connection with the aforementioned Sessions Case No. 209/2022. The allegation against the petitioners is that on 21.03.2022, at about 7:30 p.m., while Rinima Begum along with her elder sister Rupjan Nessa were trying to get into their car, after visiting the residence of Dr. Binay at Bilattari Chowk, the petitioner No. 1 along with Jhumma @Abdur Rahman and Chintu suddenly arrived on a motorcycle and the petitioner No. 1, Mokdam Ali grabbed Rinima by her throat while Jhumma @Abdur Rahman stabbed her and fled from the scene. Both the petitioners were arrested during investigation and forwarded to judicial custody. 5. The petitioners preferred a bail application before this Court but the same was rejected vide order dated 07.06.2022 in connection with B.A. No. 978/2022. On conclusion of investigation, the police submitted charge-sheet on 20.06.2022 under Sections 120(B)/340(1)/302/201 of the IPC against the present petitioners and other sections of law against the other accused along with the present petitioners. Page No.# 3/8 6. It is further submitted that the petitioner No. 1 preferred a bail application before the Court of the learned Additional C.J.M. for default bail which was rejected vide order dated 21.06.2022. The petitioners then preferred an application under Section 439 of the Cr.PC before the Court of the Sessions Judge at Barpeta and vide order dated 29.06.2022 in connection with Criminal Misc. Bail application No. 403/2022, the petitioners were released on bail. 7. Challenging the order of bail, the informant Harun Ali filed an I.A.(Crl.) 435/2022 before this Court for cancellation of the bail order dated 29.06.2022, and the application was allowed by this Court vide order dated 20.05.2024, wherein the bail granted to the petitioners by the learned Sessions Judge, Barpeta on 29.06.2022 was cancelled and the petitioners were directed to surrender before the Sessions Judge at Barpeta. 8. Aggrieved by this order, the petitioners preferred Special Leave to Appeal (Crl.) No. 7819/2024 before the Hon'ble Supreme Court and the Hon'ble Supreme Court vide order dated 07.06.2024, issued notice exempting the petitioners from surrendering. Meanwhile, trial commenced and charges were framed under Sections 302/34 of the IPC against all the accused who were charge-sheeted and this case was posted for evidence on 21.01.2023. 9. It is pertinent to mention that the Trial Court took cognizance against two accused, Abdur Rahman and Sofiqul Islam under Section 319 of the Cr.PC vide order dated 30.06.2023. 10. It is submitted on behalf of the petitioners that 32 witnesses are enlisted as cited witness in the charge-sheet. By 22.12.2024, the prosecution has examined around 21 witnesses out of 32 witnesses. It is further submitted that the Hon'ble Supreme Court vide order dated 10.12.2024 in Special Leave to Appeal Page No.# 4/8 (Crl.) No. 7819/2024, upheld the order passed by this Court and directed the petitioners to immediately surrender. However, liberty was granted to the petitioners to apply for fresh bail after examination of the key witnesses including the seizure witnesses. It is further submitted that the petitioner No. 1 surrendered before the Trial Court on 07.01.2025, whereas, the petitioner No. 2 was produced before the learned Trial Court on 06.01.2025 under the strength of an NBWA issued on 21.12.2024. The learned Trial Court vide order dated 27.01.2025 rejected the petitioners prayer for bail observing that the prayer for bail was premature as after the direction of the Hon’ble Supreme Court, no new witnesses have been examined. 11. It is further submitted that the learned Trial Court recorded the evidence of Taibun Nessa, Muktar Husain and Sukur Ali, PW-22, PW-23 & PW-24 respectively on 04.02.2025. On 17.02.2025, the learned Trial Court examined PW-25, Bahar Uddin. On the same day, the petitioners preferred a bail petition before the learned Trial Court on the ground that most of the key witnesses have already been examined but the petition was rejected despite the fact that most of the key witnesses have been examined. 12. It is further submitted that a total number of 27 enlisted witnesses have been examined out of 32 witnesses. The bail order which was challenged before this court was an order which was granted at the time of filing of charge-sheet when trial was yet to commence. The Hon’ble Supreme Court has held that this court has rightly cancelled the bail granted to the petitioners as the order passed by the learned Session Judge was perverse as the petitioners were not entitled to default bail as no petition was pending at the time of filing the charge-sheet. 13. It is further submitted that while the issue of bail was being considered by Page No.# 5/8 the Hon’ble Supreme Court, the prosecution has nearly completed recording the evidence of most of the witnesses including all the vital independent witnesses. It is further submitted that the Hon’ble Supreme Court while disposing of the Special Leave petition accorded the liberty to the petitioners to apply for fresh bail after examination of the key witnesses including the seizure witnesses. The petitioners have submit that the witnesses who are yet to be examined are as follows:- (i) Sankar Chandra Rabha-Senior Scientific Officer of DFS; (ii) Abul Hussain, In-charge, FAAMCH, Barpeta; (iii) Rahul Das, Service/CDR; (iv) Sushant Samuah, Alternate State Nodal Officer Nesha Jio/CDR; (v) S.I. Prakash Deka- Barpeta P.S.; (vi) Rahul Doley- O.C. of Barpeta P.S. 14. It is submitted that all the seizure witnesses have been examined and the petitioners are entitled to bail at this juncture. During the entire course of trial, there was not a single instance of any hampering or tampering of the prosecution witnesses by the petitioners. This is a case of clear acquittal and there is no scope that the petitioners will jump the bail. The petitioner No. 1 is a doctor by profession with wife and minor children and is thus not a flight risk. The petitioner No. 2 has a dependent wife and child. 15. Learned Additional Public Prosecutor has raised serious objection against the Page No.# 6/8 bail petition. It is submitted that considering the nature and gravity of the offence and the role attributed to the petitioners, this court was pleased to cancel the bail granted to the petitioners by the learned Session Judge. The order of this court was upheld by the Hon’ble Supreme Court. 16. It is further submitted by the learned Additional Public Prosecutor that the table provided by the petitioners at Paragraph- 21 of the of the bail application reflecting the names of the witnesses clearly depicts that these witnesses are indeed key witnesses. It is submitted that the argument of the petitioners that the six witnesses who are yet to be examined are not key witnesses cannot be accepted. It is submitted that Investigating Officer is a key witness. The witness No. 3 and 4 are also key witnesses and they cannot be considered not to be key witnesses. 17. I have considered the submissions the at the Bar with circumspection. Very recently on 10.12.2024, the Hon’ble Supreme Court in connection with SLP Criminal No. 7819/2024, has held that “the basis for the impugned judgment to cancel bail, together with submission of the learned counsel for the parties are taken into account. We have considered those. Having also produced the bail granted to by the learned Session Judge on 29.06.2022, we are of the view that the High Court rightly intervened with the said bail order. The special leave petition is therefore found devoid of merits and the same is dismissed.” The Hon’ble Supreme Court has dismissed the Special Leave petition against the order of this court in connection with I.A. Criminal No. 435/2022. It is true that when the order of this Court was upheld by the Hon’ble Supreme Court, eleven witnesses were to be examined but as on today only six witnesses are to be examined. Page No.# 7/8 18. I have also scrutinized the table at paragraph-21 of the application. In my opinion, the witnesses are important witnesses and they cannot be held to be not key witnesses to consider the bail petition of the petitioners. 19. The argument of the learned counsel for the petitioners that the witnesses No. 1 to 6 reflected in the table in paragraph-21 of the application that the witnesses are not key witnesses cannot be accepted. 20. Reasonings were given by this court while cancelling the bail granted to the petitioners by the Learned Sessions Judge in I.A. No. 435/2022. This Court has observed the facts and circumstances of this case and the allegations in the FIR in connection with Barpeta P.S. Case No. 338/2022. It was observed by this court that, after eliminating the victim Rupjan Nessa, the accused named Chintu had taken Mokdam Ali and Jhumma @Abdur Rahman away from the place of occurrence in his motorcycle. It was also observed that a civil case was pending between the parties relating to a land dispute between the deceased Rinima Begum who was also a practicing lawyer of Barpeta Court. It was also observed that investigating Officer has submitted charge sheet against both the petitioners and on frivolous grounds and irrelevant materials, the Learned Sessions Judge has considered the bail and granted bail to the petitioners. As this Court has given reasonings while cancelling the bail petition, the Hon’ble Supreme Court has not interfered with the decision of this court and upheld the decision of this court when the petitioners preferred a SLP No. 7819/2024. However, an opportunity was granted to the petitioners to apply for fresh bail after examination of the key witnesses including the seizure witnesses. It has already been held in the foregoing discussions that the witnesses who are yet to be examined cannot be dismissed as unimportant witnesses. Page No.# 8/8 21. I have also scrutinized the Trial Court Records and the evidence of the witnesses. The merits of this case are not brought to the fore as trial is still under progress. At the fag end of the trial, I am hesitant to grant bail to the petitioners. JUDGE Comparing Assistant